Snodgrass v. Snodgrass

• Decision Date: 18 January 1912
• Parties: SNODGRASS v. SNODGRASS.
• Court: Alabama Supreme Court

57 So. 474

176 Ala. 160

SNODGRASS v. SNODGRASS.

Supreme Court of Alabama

January 18, 1912

Appeal from Chancery Court, Jackson County; W. H. Simpson Chancellor.

Action by W. E. Snodgrass against Eliza A. Snodgrass, individually and as administratrix, and others. From a judgment overruling a demurrer to the bill, Eliza A. Snodgrass, as administratrix, appeals. Affirmed.

Tally &amp Fricks and Virgil Bouldin, for appellant.

Milo Moody and McCord, Roper, Inzer & Stephens, for appellee.

SOMERVILLE J.

The bill of complaint shows that N.H. Snodgrass died intestate and without lineal heirs, leaving real estate, some of which he owned jointly with complainant, who was his brother, and jointly also with other brothers; that the personal property of said decedent is ample for the payment of all his debts that complainant and his brothers as heirs at law of deceased are entitled to his real estate, subject to the widow's claim of dower; and that Eliza Snodgrass, his widow, has duly qualified as the administratrix of his estate in the probate court, but has taken no steps towards administration. The bill prays for the removal of said administration into the chancery court, for the allotment of the widow's dower in said lands, and for the partition of the lands in specie among the joint owners, who, along with said administratrix both individually and in her representative capacity, are made parties to the proceeding. Mrs. Snodgrass, as administratrix, demurred to the bill on the grounds substantially that she is improperly joined as a party defendant, and that, as a bill to remove the administration into the chancery court, it is without equity because complainant shows no such interest in the administration and distribution of the estate as would entitle him to remove it from the probate court into chancery.

The argument in this behalf is founded on the following postulates:

(1) The widow, in the absence of lineal descendants, as here, is entitled to all the personal estate--is, in fact, the sole distributee.

(2) The personalty being sufficient to pay the debts, the real estate cannot be subjected to the claims of creditors.

(3) The heirs are interested only in the real estate, which is unincumbered by debts, and hence exempt from administration and unaffected thereby.

(4) Where the administratrix need not and cannot resort to the real estate for the payment of debts, there is no duty to allot dower therein; and, at least in the absence of any attempt on her part to do so, the allotment of dower is not an incident of the administration, and with it the estate in administration has no concern.

This argument is, we think, very clearly unsound, and opposed to the settled law of this state, as the following statement will show:

1. The personal representative of the husband's estate is by statute (section 3825, Code 1907) authorized to petition the court of probate for the assignment of dower. And this court has recently declared that "the assignment of dower and the allotment of homestead are both steps appropriately incident to the administration of the estates of decedents in the probate court." Hamby v. Hamby, 165 Ala 171, 51 So. 732, 138 Am. St. Rep. 23. In that case the heirs of a decedent filed a bill in...